Appellant was convicted of manslaughter, and his punishment assessed at two years confinement in the penitentiary.
On a former trial he had been acquitted of murder and convicted of manslaughter. On appeal, the judgment was reversed. On the trial which resulted in this conviction, the issue of manslaughter alone was submitted as a predicate for conviction. This is not a case where the evidence shows only murder, excluding the issue of manslaughter; therefore, it is not necessary to discuss the case from that standpoint. There was evidence on the last trial, as in the former, which would have authorized a conviction of murder, or manslaughter. Appellant requested the court to instruct the jury, if they believed from the evidence appellant was guilty of murder in the second degree, they should acquit of manslaughter. This being refused, exception was reserved and error is here assigned. The effect of appellant's contention is that an acquittal of murder could operate as a bar to the conviction of manslaughter under the same indictment, though there was evidence supporting this latter or less offense. It has been uniformly held, where a party has been acquitted of the higher degree or grade of offense, that he can not again be convicted of that grade or degree. But, it has been as uniformly held, that such acquittal does not operate as a bar to the prosecution of the inferior degree of such offense. Appellant's contention is that the jury should offset manslaughter with the acquittal of murder; and therefore acquit if they find from the evidence that defendant is guilty of the higher offense; both of which are but grades of the same offense and triable under the allegations of the indictment. We can not assent to this proposition. In Parker's case, 22 Texas Criminal Appeals, 105, the court instructed the jury that they could use the testimony showing murder as a predicate for the conviction of manslaughter, although the party had been previously acquitted of murder. That is, appellant could not be again tried for murder when he had been once acquitted of that offense. That case rests upon that proposition. Other cases are numerous to the effect that, where there is evidence of a higher grade of offense, a conviction will not be disturbed for the inferior degree, though there was no testimony showing the inferior degree. These are expressly recognized and sanctioned in Parker's case. Fuller's case, 30 Texas Criminal Appeals, 559, is authority for holding that a conviction for *Page 7 murder in the second degree can be had where the evidence shows murder in the first degree. This seems to be predicated upon the idea that malice is a constituent element of both degrees of murder. The Fuller case was reaffirmed in Conde case, 35 Texas Criminal Reports, 98.
Let us look at it from another angle of view. Suppose, under an indictment charging murder, the State elects to try the accused only for manslaughter, dismissing the prosecution as to murder; and, on the trial, there is testimony which would authorize a conviction for murder in either degree or manslaughter. Now, if appellant's theory is correct, and his contention sound, the court would be required to instruct the jury, if they believed the evidence of murder, they should acquit of manslaughter. If this position is the correct one, then, in all cases involving grades of offense, as in homicide, there should be evidence of a higher grade than that upon which the conviction is sought, defendant would be entitled to an acquittal, by reason of that evidence, however full and strong the testimony might be with reference to the grade for which he is being tried. It is not necessary to discuss this question. The court was correct in refusing the requested instructions, and did not err in submitting alone the issue of manslaughter. Appellant had been acquitted of murder and could not use that acquittal as a bar to the prosecution for manslaughter. Scroggins v. State,32 Tex. Crim. 71. Subsequent to the trial appellant, by motion in arrest of judgment, sought to raise the question of jeopardy. This comes too late under all the authorities in this State; and it is not necessary to enter into a discussion of the question. The judgment is affirmed.
Affirmed.